Arkansas Colonial Legal System, 1686-1766

THE ARKANSAS COLONIAL LEGAL SYSTEM, 1686-1766
Morris S. Arnold*
Except for the silence of its final letter, there is nowadays noth­ing
very French about Arkansas. Yet before the American takeover
in 1804 the great majority of the European inhabitants of the area
presently occupied by the state were of French origin. There is
s9me visible proof of this in the names, many now mangled beyond
e:asy recognition, which eighteenth-century voyageurs and coureurs
de bois gave to a good many Arkansas places and streams; 1 and
there are, as well, a number of Arkansas townships which bear the
names of their early French habitants .2
While these faint traces of a remote European past survive, ab­solutely
nothing remains of the laws and customs which the ancient
residents of Arkansas observed. This is no accident. It was a favor­ite
object of Jefferson to introduce the common law of England into
the vast Louisiana Territory as quickly as he could. In the lower
territory he waited too late. New Orleans had had a large French
population and a somewhat professionalized legal system for some
time, and the civilian opposition, given time to congeal, proved to
* Ben J. Altheimer Distinguished Professor of Law, University of Arkansas at Little
Rock. B.S.E.E. 1965, LL.B. 1968, University of Arkansas; LL.M. 1969, S.J.D. 1971, Harvard
Law School.
This article is the first chapter of Professor Arnold's book, UNEQUAL LAWS UNTO A
SAVAGE RACE: EUROPEAN LEGAL TRADITIONS IN ARKANSAS, 1686-1836, which will be
published later this year.
l. See generally Branner, Some Old French Place Names in the State of Arkansas, 19
ARK. HIST. Q. 191 (1960). The etymology of some of these names is difficult and interesting.
Who would guess very quickly, for instance, that Smackover in Union County is Chemin
Couvert (covered road) in disguise? Id. at 206. Tchemanihaut Creek (pronounced
'Shamanahaw") in Ashley County is a good deal easier: Chemin a haut (high road) must
have been its original name. Its initial letter, one local historian has plausibly suggested, is
probably attributable to "a misguided attempt to derive the name from the Indian lan­guage."
Y. ETHERIDGE, HISTORY OF ASHLEY COUNTY, ARKANSAS 17, 18 (1959). Other
names should on sight be instantly intelligible to a modern Parisian, though their current
pronunciation might cause him consternation: Examples are the Terre Rouge (red earth)
and Terre Noire (black earth) Creeks in Clark County, the L 'Angui!le (eel) River in north­east
Arkansas, and La Grue (crane) township in Arkansas county.
2. Vaugine and Bogy Townships in Jefferson County, Darysaw (Desruisseaux) Town­ship
in Grant County, and Fourche La Fave (Lefevre) Township in Perry County are good
examples.
391
392 UALR LAW JOURNAL [Vol. 6:391
have sufficient muscle to win a partial victory.3 As a result, as to
substantive civil matters the state of Louisiana is today a thoroughly
civilian jurisdiction. In the upper territory, however, by a piecemeal
process beginning in 1804, the English common law was insinuated
into the legal system, until, in 1816, it was at last adopted virtually
wholesale by the General Assembly of the Missouri Territory.4 The
purpose of this article is to explain why civilian legal institutions
proved so weak in Upper Louisiana and especially in Arkansas. It
turns out that the smallness and character of the European popula­tion
in Arkansas was the main cause for the vulnerability of Euro­pean
legal norms there. The reception of the common law in
Arkansas was simply one element in a more general exchange of
cultures which occurred following the Louisiana Purchase.
I
At ten o'clock on the morning of March 12, 1682, Robert Cava­lier,
sieur de la Salle, having been commissioned four years earlier
by Louis XIV of France to explore and take possession of the Mis­sissippi
and its tributaries, drew near the Quapaw Village of Kappa.
The village was located on the right bank of the Mississippi River
about twenty miles north of the mouth of the Arkansas. From the
war chants emanating from the Indian town, La Salle judged that he
was in for a hostile reception; so he hastily constructed a "fort" on
an island opposite the village and awaited developments. Soon,
however, the Quapaw chief sent the calumet of peace, and La Salle
and his men went to Kappa where they were received with every
possible demonstration of affection both public and private. Asked
by the Quapaws for help against their enemies, La Salle promised
that they could thenceforth look for protection to the greatest prince
of the world, in whose behalf he had come to them and to all the
other nations who lived along and around the river. In return, La
Salle said, the Quapaws had to consent expressly to the erection in
their village of a column on which His Majesty's arms were to be
painted, symbolizing their recognition that he was the master of
their lands.
The Indians agreed and Henry de Tonti, La Salle's lieutenant
3. See generally G. DARGO, JEFFERSON'S LOUISIANA: POLITICS AND THE CLASH OF
LEGAL TRADITIONS (1975).
4. 1 LAWS OF A PUBLIC AND GENERAL NATURE, OF THE DISTRICT OF LOUISIANA, OF
THE TERRITORY OF LOUISIANA, OF THE TERRITORY OF MISSOURI, AND OF THE STATE OF
MISSOURI, UP TO THE YEAR 1824, ch. 154 (1842).
1983) COLONIAL LEGAL SYSTEM 393
and commandant of one of the two brigades in the company, imme­diately
caused the column to be fashioned. On it was painted a
cross and the arms of France, and it bore these words:
Louis the Great, King of France and of Navarre, rules. 13th of
March, 1682.
Tonti then conducted the column with all the French men-at-arms
to the plaza of the village, and, La Salle taking up a position at the
head of his brigade and Tonti at the head of his, the Reverend Fa­ther
Zeno be Membre sang the hymn 0 crux, ave, spes unica. The
company then went three times around the plaza, each time singing
the psalm Exaudiat te Dominus and shouting vive le roy to the dis­charge
of their muskets. They then planted the column while re­peating
the cries of vive le roy, and La Salle, standing near the
column and holding the king's commission in his hand, spoke in a
loud voice the following words in French:
On behalf of the very high, very invincible, and victorious prince
Louis the Great, by the grace of God, King of France and of
Navarre, the fourteenth of this name, today, the 13th of March,
1682, with the consent of the nation of the Arkansas assembled at
the village of Kappa and present at this place, in the name of the
king and his allies, I, by virtue of the commission of His Majesty
of which I am bearer and which I hold presently in my hand ... ,
have taken possession in the name of His ffi.ajesty, his heirs, and
the successors to his crown, of the country of Louisiana and of all
the nations, mines, minerals, ports, harbors, seas, straits, and
roadsteads, and of everything contained within the same . . . .
After more musket-firing and the giving of presents the Indians cele­brated
their new alliance throughout the night, pressing their hands
to the column and then rubbing their bodies in testimony to the joy
which they felt in having made so advantageous a connection. Thus
did France gain sovereignty over and ownership of Arkansas.
The reason that we know all these details and more about La
Salle's activities in Arkansas is that he had requested, and received,
from Jacques de la Metairie, the notary who was in his company, a
lengthy proces-verbal describing the events at Kappa and officially
attesting their occurrence.5 This was Arkansas's first exposure to
civilian legal processes. It would be almost 150 years before the
influence of the civil law ceased to make itself felt there.
5. 2 P. MARGRY, DECOUVERTES ET ETABLISSEMENT DES FRAN<;:AIS DANS L'0UEST ET
DANS LE SUD DE L'AMERIQUE SEPTENTRIONALE, 1614-1754 (1881).
394 UALR LAW JOURNAL [Vol. 6:391
II
Arkansas Post was the first European establishment in the
lower Mississippi valley. It was first located about twenty-seven
miles by river from the mouth of the Arkansas on the edge of Little
Prairie at what is now called the Menard Site. (See Figure 2). Set­tled
in 1686 by six tenants of Henry de Tonti to whom La Salle in
1682 had granted the lower Arkansas as a seignory, 6 it was to serve
as an Indian trading post and as an intermediate station between the
Illinois country and the Gulf of Mexico.7 Tonti's plans for the place
had been large indeed. In 1689 he promised the Jesuits to build a
house and chapel at the Arkansas and to grant a resident priest a
sizeable amount of land; while there, Tonti confidently asserted, the
priest could "come and say mass in the French quarter near our
fort."8
No priest in fact established himself during Tonti's ownership
of the Arkansas and his French quarter and fort never materialized.
When in an undated grant of land to Jacques Cardinal, one of his
men at the Post, Tonti styled himself seigneur de ville de Tonti (lord
of the town of Tonti),9 he was in the grips of an excessive enthusi­asm.
There is no evidence that the European population of the
place ever exceeded six. In fact, when Joutel arrived there in 1687
there were only two Frenchmen remaining in residence; 10 and the
single log house he descpbed is apparently the only structure ever
erected at Tonti's Post. Joutel remarked of Tonti's two traders that
"if I was joyous to find them, they participated in the joy since we
left them the wherewithal to maintain themselves for some time."
Indeed, he said, "they were almost as much in need of our help as
we of theirs." He ridiculed the whole idea of a post at that location.
"The said house," Joutel noted sarcastically, "was to serve as an
6. See Faye, The Arkansas Post ef Louisiana: French Domination, ;26 LA. HIST. Q. 633,
635-36 ( 1943).
7. Such was the view of Father Douay, a Jesuit who described Tonti's post in 1687.
See M. THOMAS, THE ARKANSAS POST OF LOUISIANA, 1682-1783 (M.A. Thesis, University
of California, 1948).
8. Tonti's grant to the Jesuits is quoted in 1 M. GIRAUD, A HISTORY OF FRENCH LOUI­SIANA
8 (J. Lambert trans., 1974).
9. The grant is translated in THE FRENCH FOUNDATIONS 396 (T. Pease & R. Werner
eds., 1934).
10. Faye, supra note 6, at 735.
1983] COLONIAL LEGAL SYSTEM
Henry de Tonti, lieutenant of La Salle. He founded Arkansas
Post in 1686 and in the late seventeenth century styled himself
seigneur de ville de Tonti. He was the first European to possess
judicial authority in Arkansas.
(Courtesy of the Museum of the History of Mobile).
395
396 UALR LAW JOURNAL · [Vol. 6:391
entrepot [way-station] for the French who travelled in these parts,
but we were the only ones whom it so served." 11
Short of supplies and virtually inaccessible, the tiny outpost
never prospered. The war with the Iroquois closed the route to Ca­nada
and made trade to and from Arkansas impossible much of the
time until 1693.12 By 1696, Jean Couture, Tonti's lieutenant and
commandant at the Post, had deserted to the English, 13 and in 1699
Jesuit missionaries to the Quapaws found no trace of a French set­tlement.
14 By then the French had evidently abandoned the Arkan­sas,
though there may have remained behind a "few white savages
thereabouts as wild as red savages." 15
However grandiose and ambitious had been the schemes of
Tonti, they would soon come to seem tame. In 1717 the Mercure de
France, a Paris newspaper, began advertising the riches of Louisi­ana
to its readers: Gold and silver could be mined there "with al­most
no labor." The mountains situated on the Arkansas River
would be explored, and there, one correspondent exuded, "we shall
gather, believe me, specimens from silver mines, since others al­ready
have gathered such there without trouble." When Cadillac
sensibly protested that "the mines of the Arkansas were a dream" he
was promptly committed to the Bastille "on suspicion of having spo­ken
with scant propriety against the Government of France."16
The man behind the propaganda campaign was John Law, a
Scot, who owned a bank in Paris and who had in 1717 succeeded in
securing for his Compagnie d'Occident a monopoly on Louisiana
trade. Law's company recruited thousands of colonists to settle in
Louisiana and the king granted it authority to grant land from the
11. Joutel Remarques sur /'Ouvrage de Tonti Re/at(( a la Louisiane ( 1703), Archives
Service Hydrographique (Paris), vol. 115-9, no. 12 (Typescript in Little Rock Public Li­brary).
The translation in the text is mine.
12. Faye, supra note 6, at 638.
13. IBERVILLE'S GULF JouRNALS 144 at n.98 (R. McWilliams ed. 1950).
14. 18 COLLECTIONS OF THE WISCONSIN HISTORICAL SOCIETY 427, at n.37 (1908).
15. Faye, supra note 6, at 646. See also I M. GIRAUD, supra note 8, at 8: "When
d'Iberville reached the Mississippi [i.e., in 1699] the post had been abandoned." Some writ­ers
are reluctant to say that the Arkansas was completely devoid of Europeans at this time.
See, e.g., P. HOLDER, ARCHAEOLOGICAL FIELD RESEARCH ON THE PROBLEM OF THE LOCA­TIONS
OF ARKANSAS POST ARKANSAS 4 (1957): "The French occupation of the general area
along the lower courses of the Arkansas and White Rivers was virtually continuous from the
1680's onward." The truth is that the sources simply fail to mention any Europeans in Ar­kansas,
except Jesuit missionaries, between 1699 and 1721. It is, however, hard to resist
believing that a few hunters and trappers ventured from time to time into the area and
established temporary camps there. Almost certainly no real settlement existed however.
16. Faye, supra note 6, at 653.
1983] COLONIAL LEGAL SYSTEM 397
Royal domain. Proprietors of the company's land grants (conces­sionaires)
were given considerable latitude in choosing the spots for
their settlements, since the interior of Louisiana was not well
known; and they therefore exercised much discretion in locating
their colonists on arrival. 17 However, the company early on had
recognized the Arkansas River as an important spot, since it was
thought that it might well be the best route to the Spanish mines of
Mexico. Thus the company specifically directed where the Arkansas
concession should be located and ordered that it be the first occu­pied.
18 It granted this concession to Law himself.
In August of 1721, a group of Law's French engages (perhaps
as many as eighty) took possession of land on Little Prairie at or
near the site of Tonti's abandoned trading post. 19 (See Figure 2).
Although Law was by then bankrupt and had fled France, the news
did not reach Louisiana until after Jacques Levens, Law's director
in Louisiana, had caused the Arkansas colony to be established
under the command of some of his subordinates.20 By December of
that year Bertrand Dufresne, sieur du Demaine, replaced Levens as
director for Arkansas, and in March of 1722 he took possession of
the concession and began an inventory of its effects and papers.21
On his arrival he found only twenty cabins and three arpents (about
2.5 acres) of cleared ground. He reported a total of about fifty men
and women resident,22 tristes debris, Father Charlevoix called
them,23 of Mr. Law's concession. They had produced only an insig­nificant
harvest. Lieutenant la Boulaye was nearby with a military
detachment of seventeen men.24 (See Figure 1).
Despite the existence of a company store at the Arkansas con­cession,
both the colony and the military establishment were in con­siderable
difficulty.25 Dufresne therefore immediately released
twenty of the engages from service and gave them lots to cultivate in
the hopes that a better harvest of corn and wheat would be realized
in 1722. In February of the following year there were only forty-one
colonists remaining, divided now into two small farming communi-
17. 4 M. GIRAUD, H!STOJRE DE LA LOUISIANE FRANc_;;AISE 198 (1974).
18. Id.
19. Id.
20. Id. at 199.
21. Id. at 271.
22. Id. at 272.
23. 6 P. CHARLEVOIX, JOURNAL D'UN VOYAGE FAIT PAR ORDRE DU Roi DANS
L'AMERIQUE SEPTENTRIONNALE 164 (1744).
24. 4 M. GIRAUD, supra note 17, at 273.
25. The following paragraph is based on Id. at 273-74.
398 UALR LAW JOURNAL [Vol. 6:391
ties: Fourteen men and one woman at Law's concession under
Dufresne, and sixteen men, some with families, two leagues down
the river with the troops. Among this latter group there lived six
black slaves. 26 Benard la Harpe, while exploring the river in 1721,
had predicted, or at least hoped for, a turn in the fortunes of the
struggling colony, but that hope proved false and in 1727 Father
Paul du Poisson, the Jesuit missionary to the Arkansas, reported
that only about thirty Frenchmen remained behind.27 The military
post had been abandoned two years previous. 28
Village
des
Arcan~as
---N
Poste francais commande
par le S. la Boulaie
0 - - - -, ·: ·Concession de M. Law
I I
L..-----'
MISSISSIPPI
Figure 1 Sketch of the location of Law's colony by Du­mont
de Montigny,Archives Nationales, Paris, 6 JJ-75, Piece 254.
All this seemed worth recounting in some detail because for
generations historians of Arkansas have believed that a colony of
Germans once occupied their river. Law did recruit many Germans
for settlement in Louisiana, and they were destined for the Arkan­sas,
but as soon as the news of Law's bankruptcy reached the colony
26. Recensement General des Habitans Estab!ys,,.SoteJouy Arkansas et d~s Ouvrier~ ~e la
Concession cy devant Apartenant a M. Law, 18 February, 1723. (Transcnpt at Lomsiana
History Center, Louisiana State Museum, New Orleans).
27. Du Poisson to Father___, translated in Falconer, Arkansas and the Jesuits in
1727-A Translation, 4 PUBLICATIONS OF THE ARKANSAS HISTORICAL ASSOCIATION 352, at
375 (1917).
28. Faye, supra note 6, at 670.
1983] COLONIAL LEGAL SYSTEM 399
in June of 1721, the Compagnie des Indies took over the direction of
his concession;29 and when the time arrived to transport the German
immigrants to Arkansas, the company, in an economy move, de­cided
instead to send them to Delaire's grant in Lower Louisiana.30
In short, none of Law's Germans ever reached Arkansas. This is a
pity, as the prospect of discussing, or at least imagining, a group of
German immigrants living under French law on the Arkansas River
was an intriguing one--one of which the facts have now unfortu-nately
deprived us. ·
III
Before 1712, the colony of Louisiana, with a population of only
a few hundred, had been entirely under military rule and regular
civil regulation was altogether lacking. On September 19, 1712, the
Crown granted a trade monopoly to Antoine Crozat but he was
given no governmental authority: As Henry Dart noted, the charter
was "only an operating contract with the duties of government re­tained
in the Crown."31 However, the charter did adopt as law for
the colony "nos Edits, Ordonnances Et Coutumes Et !es usages de la
Prevoste Et Vitf/omte de Paris--our edicts, ordinances, and customs,
and the usages of the Provostry and Viscounty of Paris."32 The Cou­tume,
despite its name, was actually a small code of some 362 titles
first reduced to writing in 1510,33 and treating both substantive and
adjective law. It was itself terse, indeed epigrammatic; but the com­mentary
on it by the time of its adoption in Louisiana was volumi­nous.
34 Annotated versions of the Coutume were therefore very
popular in France and in time they found their way to Louisiana.35
Also in 1712, by a separate instrument, a new and important
institution was created for the colony, the Superior Council of Loui­siana.
36 Modelled on the governmental arrangements already in
29. 4 M. GIRAUD, supra note 17, at 216.
30. Id. at 248.
31. Dart, The Legal Institutions of Louisiana, 3 SOUTHERN LAW Q. 247 (1918). This
article also appears in 2 LA. HIST. Q. 72 (1919).
32. The charter is printed in 4 PUBLICATIONS LA. HIST. Soc. 13, at 17 (1909).
33. For a precis of its provisions, title by title, see Schmidt, History ef the Jurisprudence
of Louisiana, l LA. L. J., no. l, l (1841).
34. The most useful eighteenth-century commentary is C. FERRIERE, CoMMENTAIRE
SUR LA CouTUME DE LA PREVOTE ET VICOMTE DE p ARIS. It is available in several editions.
35. Dart, The Law Library ef a Louisiana Lawyer in the 18th Century, 25 REPORTS OF
THE LOUISIANA BAR ASSOCIATION 12, at 22 et seq. (1924).
36. See Dart, supra note 31, at 249 et seq. See also, for some discussion of the work of
this body, Hardy, The Superior Council in Colonial Louisiana, in FRENCHMEN AND FRENCH
400 UALR LAW JOURNAL [Vol. 6:391
place in other French colonies, the Council had original and exclu­sive
jurisdiction to decide disputes arising anywhere in Louisiana.
It consisted of the Lieutenant General of New France; the Intendant
of the same; the Governor of Louisiana; a first councilor of the king;
two other councilors; the attorney general; and a clerk. Judgments
in civil cases required the concurrence of at least three members and
in criminal cases at least five. The Council was originally created to
exist for three years, but on September 7, 1716, it became by virtue
of a Royal Edict a permanent institution.37
In 1717 a fundamental change occurred in the government of
Louisiana. In that year Crozat, having lost an enormous sum under
his operating charter, surrendered it, and John Law's Compagnie
d'Occident was given a monopoly over trade in the colony. In addi­tion,
unlike Crozat's company, the Compagnie d'Occident was
granted extensive governmental authority: It had the power to ap­point
the Superior Council, to name governors and military com­mandants,
and to appoint and remove all judges. The charter also
provided that "Seront tous !es juges Etbalis en tous !es d. Lieux tenus
de juger suivant !es Loix Et ordonnances du Royaume Et se Con-former
a la Coutume de la prevoste Et Vicomte de Paris. . . ."; that
is, that "all the judges established in all the said places shall be
bound to judge according to the laws and ordinances of the realm,
and [shall also be bound] to conform to the customs of the Prevostry
and Viscounty of Paris."38 This portion of the charter obviously
provided for the reception of general French legislation and the
Custom of Paris. In addition, it has been shown that subsequent
French legislation, as soon as it was registered in the colony, and the
legislation of the Superior Council itself, formed part of the body of
colonial Louisiana law.39 The subsequent French legislation was of
three distinct sorts: (a) general legislation; (b) special colonial legis­lation;
( c) colonial legislation passed specifically for Louisiana. 40
Two years later we hear for the first time about inferior courts
for outlying portions of the colony. On September 12, 1719, the
king noted the need to appoint persons to act as judges "to facilitate
w A YS IN THE MISSISSIPPI v ALLEY 87 (J. McDemott ed., 1969); Micelle, From Law Court to
Local Government: Metamorphosis of the Superior Council of French Louisiana, 9 LA. HIST.
85 (1968).
37. The edict is printed in 4 PUBLICATIONS LA. HIST. Soc. 21-23 (19CS).
38. Id. at 48.
39. Baade, Marriage Contracts in French and Spanish Louisiana: A Study in "Notarial"
Jurisprudence, 53 TUL. L. REV. 3, 9 (1978).
40. Id.
1983] COLONIAL LEGAL SYSTEM 401
the administration of justice in places distant from the place where
the Superior Council holds it sessions."41 The "heads or directors"
of concessions along with "other of our subjects, capable and of pro­bity"
were to "exercise both civil and criminal justice." The edict
went on to provide that, even in these inferior courts, "three judges
shall sit in civil matters and in criminal matters five judges .... "
The plan, evidently, was to have a kind of provincial council at each
settlement. The king further provided that an appeal from these lo­cal
tribunals would lie in all cases to the Superior Council.42 All this
was being done, of course, to make ready the way for Law's coloniz­ing
schemes.
In 1720 or 1721 Louisiana was for the first time divided into
districts (or counties). Arkansas was one of the nine districts origi­nally
created, and a local commandant and a judge was assigned to
each "to put justice with greater ease in reach of the colonists."43
Presumably, and understandably, the plan to establish local councils
outside New Orleans was abandoned at this time. The sources sim­ply
fail us on the question of whether more than one person was
expected to sit on local courts, but it could not have proved worka­ble
in remote places like Arkansas to assemble a multi-member ju­dicial
body.
In May of 1722 the Regent issued an order creating a provincial
council for Illinois, the jurisdiction of which supposedly extended
from "all places on and above and Arkansas River . . . to the
boundaries of the Wabash River." The commandant of the Illinois,
Lieutenant de Boisbriant, was to serve as "chief and judge" of this
so-called council, which in fact had only one other member.44 It
thus seems to have been the plan to abolish the Arkansas district
and annex its territory to its nearest northern neighbor; and the Illi­nois
provincial council was directed "to hold its sessions at the
places where the principal factories of the company shall be estab-
41. The edict is printed in 4 PUBLICATIONS LA. HIST. Soc. 63 (1908).
42. The translation in the text is mine. The entire edict is translated and discussed in
Dart, supra note 31, at 261 et seq. Further discussion of this edict can be found in Dart, The
Colonial Legal Systems of Arkansas, Louisiana, and Texas, 27 REPORTS OF THE LOUISIANA
BAR ASSOCIATION 43 at 52 (1926).
43. Id. at 267. The other districts were New Orleans, Biloxi, Mobile, Alibamous,
Natchez, Yazoo, N atchitotches, and the Illinois.
44. Translated extracts from this order appear in 2 J. WHITE, A NEW COLLECTION OF
LAWS, CHARTERS, AND LOCAL ORDINANCES OF THE GOVERNMENTS OF GREAT BRITAIN,
FRANCE, AND SPAIN, RELATING TO THE CONCESSION OF LAND IN THEIR RESPECTIVE COLO­NIES
... 439-40 (1837).
402 UALR LAW JOURNAL [Vol. 6:391
lished."45 This language could have been construed to require the
Illinois council to sit at the Arkansas. It is, however, very much to
be doubted that such a session was ever held, and certainly it is not
believeable that anyone would repair from Arkansas to Illinois to
settle a grievance in 1722.
It seems probable, then, that whatever judicial functions were
exercised at the Arkansas were entrusted to its resident directors
even after the supposed creation of the council of the Illinois. The
only resident director that the Arkansas ever had was, as we saw,
Bertrand Dufresne, sieur du Demaine, who arrived at the Post
March 22, 1722, and he was evidently the judge from that point on.
Prior to that, Jacques Levens had been director, but as he never took
up residence in Arkansas we have to presume that if judicial func­tions
were undertaken by anyone, it was by one or more of the three
subordinates to whom Levens had entrusted the management of the
struggling colony: Jean-Baptiste, Menard, Martin Merrick, and
Labro.46 When Dufresne left the Arkansas around 1726 we can
hardly guess the means resorted to for the settlement of disputes.
Probably Father Paul du Poisson, the Jesuit missionary resident
from 1727 to 1729, used his good offices to maintain order among
the approximately thirty Frenchmen who had remained behind.47
It seems probable, therefore, that Arkansas's first sustained ex­posure
to European legal proceedings and principles occurred in the
period during which Law's Company held sway in Louisiana.
Tonti's seventeenth-century feudal seignory no doubt carried with it
the right to render justice. Though his charter from La Salle has not
as yet come to light,48 other conveyances of La Salle's are extant;
and in them he gave his grantees judicial power over small cases
("low justice" this is called) while specifically reserving important
cases ("high justice") to himself. (Cases of the latter type he di­rected
to be heard by the judge "who shall be established at Fort St.
45. Id. at 440.
46. 4 M. GIRAUD, supra note 17, at 272. Menard left the Arkansas in 1722 (jd., 275) and
was in New Orleans in 1720. Index to the Records efthe Superior Council of Louisiana, 4 LA.
HIST. Q. 349 (1921).
47. Dufresne appears in the Arkansas census of January !, 1726; but on October 21,
1726, he is described as a "settler in Arkansas, but now domiciled with Mr. Traguidy [in
New Orleans]." Index to the Records of Superior Council of New Orleans, 3 LA. HIST. Q. 420
(1920). In 1727 there was no director at the Arkansas, as Father Du Poisson tells us that he
took up evidence in "the India Company's house, which is also that of the commandants
when there are any here .... " See Falconer, supra note 27, at 371.
48. For a charter from Tonti to Jacques Cardinal, one of his men at the Arkansas, see
THE FRENCH FOUNDATIONS, supra note 9, at 396. 'Fhla is tlae Olll)' grant gf Tgati's eKtastF
1983] COLONIAL LEGAL SYSTEM 403
Louis.")49 We do not know whether Tonti's charter contained iden­tical
provisions but it certainly would have contained similar ones.
But during the fifteen years or so that Tonti held the right to dispose
of certain cases arising in his seignory, it hardly seems credible that
he or his deputies ever held anything resembling a court, or even
executed many instruments or documents.50
IV
In 1731 the Compagnie d'Occident surrendered its charter to
Louis XV, and for the rest of the period of French dominion Louisi­ana
was a Crown Colony. Late that same year a military garrison
was re-established in Arkansas; it consisted of twelve men com­manded
by First Ensign de Coulange and was located again on the
edge of Little Prairie. 51 (See Figure 2). It was apparently during the
reorganization of the colony in 1731 that civil and military authority
at the outposts of Louisiana were combined in the commandant of
the garrison-an arrangement that would survive into the Spanish
period and even for a short time during the American regime.
Part of a post commandant's civil authority was to act as notary
and judge. The exact scope of his judicial jurisdiction during the
French period is obscure, there being no document of which I am
aware which describes it specifically. Parkman, writing of condi­tions
in the Illinois in 1764, says that the "military commandant
whose station was at Fort Chartres on the Mississippi, ruled the Col­ony
with a sway as absolute as that of the Pasha of Egypt, and judg­ed
civil and criminal cases without right of appeal."52 Captain
Phillip Pittman, an English engineer and Mississippi explorer who
was writing at almost exactly the same time, gives a slightly different
version. According to him, the Illinois commandant "was absolute
49. Concession in fee by La Salle to Pierre Prudhomme, in id. at 32.
50. When Tonti petitioned for confirmation of his charter, he was evidently refused.
The petition is printed in E. MURPHEY, HENRY DE TONTI, FUR TRADER OF THE MISSISSIPPI
119 (1941). It is possible that La Salle did not have the power to make permanent grants
and that may be the reason that Tonti needed confirmation. The Letters Patent of May 12,
1678, giving La Salle the right to explore "the western part of New France" in the king's
behalf, gave him the power to build forts wherever he deemed them necessary; and he was
"to hold them on the same tern1s and conditions as Fort Frontenac." See T. FALCONER, ON
THE DISCOVERY OF THE MISSISSIPPI 19 (1844). La Salle said expressly in 1683 that this
allowed him to "divide with the French and the Indians both the lands and the commerce of
said country until it may please his majesty to command otherwise .... " See THE FRENCH
FoUNDATio~;upra note 9, at 43. The language is ambiguous, but on one permissible read­ing
it indicates a specifically reserved power in the king to revoke grants made by La Salle.
51. Faye, supra note 6, at 673.
52. Quoted in Dart, supra note 31, at 249.
404 UALR LAW JOURNAL [Vol. 6:391
in authority, except in matters of life and death; capital offences
were tried by the council at New Orleans."53 Of course, the Arkan­sas
commandant's judicial jurisdiction was not necessarily as exten­sive
as that possessed by the commandant of the Illinois. He may
very well have been subordinate to the Illinois commandant during
most of the French period.
Some fitful light is thrown on the judicial authority of the Ar­kansas
commandant by an interesting proceeding which took place
at the Post in 1743.54 In October of that year, Anne Catherine
Chenalenne, the widow of Jean Francois Lepine, petitioned Lieu­tenant
Jean-Francois Tisserant de Montcharvaux, whom she styled
"Commandant for the King at the Fort of Arkansas," asking him to
cause an inventory and appraisal to be made of the community
property in her possession. The object in view was to make a distri­bution
to the petitioner's son-in-law and daughter who had the pre­vious
May lost all their goods when attacked by Chickasaws on the
Mississippi not far below the mouth of the Arkansas. They had nar­rowly
escaped with their lives.55 Widow Lepine had decided to
make a distribution to "her poor children, at least to those who have
run so much risk among the savages." She was preparing to marry
Charles Lincto, a well-to-do resident of the Post, and she wished to
dissolve the old community which by custom had continued after
her husband's death in her and their children.
The commandant informed Madame Lepine that on 26 Octo­ber,
1743, he would inventory the "real and personal property de­rived
from the marital community" and would bring with him two
persons to look after the widow's interest and two to represent the
children. The idea was that each party in interest should have in­dependent
appraisers present to insure the impartiality of the inven­tory
and evaluation. De Montcharvaux in the presence of these and
other witnesses caused the inventory to be made on the appointed
day. The estate was fairly sizeable, being valued at 14,530 /ivres and
10 sols. It contained a great deal of personalty, including four
slaves, a number of animals, 1600 pounds of tobacco, and notes and
accounts receivable; the realty noted was "an old house" with three
small outbuildings. Interestingly, no land was mentioned.
There are two possible explanations for the absence of land in
S3. P. PITTMAN, THE PRESENT STATE OF THE EUROPEAN SETTLEMENT ON THE M1ss1s­SIPPI
S3 (1770) (Reprinted with intro. by R. Rea 1973).
S4. The relevant documents are translated in Core, Arkansas through the Looking Glass
ef 1743 Documents, 22 GRAND PRAIRIE HISTORICAL SOCIETY BULLETIN 16 (1979).
SS. This incident is reported and discussed in Faye, supra note 6, at 677-78.
1983] COLONIAL LEGAL SYSTEM 405
the inventory. One is that land may not have been actually granted
to Arkansas settlers but only given over temporarily to their use.
The other possibility is that the land on which the house was built
had belonged to Lepine before the marriage and had remained his
separate property under his marriage contract or under the general
provisions of the Coutume de Paris. The Coutume, which, as we
have seen, was in force in French Louisiana, provided that all mov­ables
(personalty), belonging to a husband or wife, whenever ac­quired,
became part of the community; but only certain immovables
(realty) acquired after the marriage were so treated.56 This rule
could be altered by contract, but in Louisiana, as in France, the Cou­tume
was often specifically incorporated into marriage contracts by
future spouses in defining the regime that would rule their prop­erty;
57 and if there was no contract provision creating a property
regime, the Coutume of course automatically applied.
The inventory is said to have been made "Pardevant nous Jean
Francois Tisserant Ecuyer Sieur Demoncharvaus Commandant pour
le Roy au Fort des Arkansas." The formulapardevant nous ("before
us") is Parisian notarial boiler-plate and indicates that the comman­dant
was acting in his surrogate notarial capacity. To an American
common lawyer, the notary is not a member of the legal profession,
not even a paralegal. But in seventeenth- and eighteenth-century
France he enjoyed a much more elevated status, as indeed he still
does in that country. Originally an official of the medieval Euro­pean
ecclesiastical courts, the notary developed into a nonconten­tious
secular legal professional in France. In England, partly
because the canon and secular laws were not on speaking terms,
"the notarial system never took deep root."58 For one thing, an im­portant
aspect of the notary's duties, his authority to "authenticate"
documents, was of little use to the English. The whole notion of a
state-sanctioned authenticator of private acts was entirely foreign to
the common law: Whereas in France we see notaries "making" and
"passing" contracts, the common law left that to the parties. The
state was very much in the background in England, and was called
upon only to enforce obligations that arose by force of nature.
The other aspect of the French notary's duties, the drafting of
instruments, conveyancing, and the giving of legal advice, was per-
56. See Baade, supra note 39, at 7, 8.
57. Id. at 25.
58. l F. POLLOCK & F. MAITLAND, A HISTORY OF ENGLISH LAW 218 (2d ed., reissued
with intro. by S. Milsom 1968).
406 UALR LAW JOURNAL [Vol. 6:391
formed by the regular legal profession in England. It is true that
there was a scriveners' company organized in London in the six­teenth
century which was granted a charter in the reign of James l.59
Members were empowered to draft legal documents, especially obli­gations
(or bonds), and they gave a certain amount of low-level le­gal
advice particularly in commercial and banking matters. 60 The
few secular notaries who practiced in London at that time con­cerned
themselves mainly with drafting documents relevant to inter­national
trade, and they were members of this company.61 But in
the eighteenth century the company lost its effort to keep common­law
attorneys from competing, and in 1804 parliament made con­veyancing
the monopoly of the regular legal profession.62 In con­trast,
the French notary's duties by the eighteenth century had come
to include not only the familiar ones of administering oaths, taking
acknowledgements, and giving "authenticity" to "acts" of private
persons by attesting them officially, but they also ran generally to
the drafting of documents, conveyancing, and the giving of practical
legal advice.63 It is not surprising, therefore, that notaries would
59. See 12 w. HOLDSWORTH, A HISTORY OF ENGLISH LAW 70 (1938). See generally on
the notary in England, Gutteridge, The Origin and Development ef the Profession of Notaries
Public in England, in CAMBRIDGE LEGAL ESSAYS 12 (1926).
60. 12 w. HOLDSWORTH, supra note 59, at id.
61. 5 w. HOLDSWORTH, supra note 59, at 115 (3d ed. 1945).
62. 12 w. HOLDSWORTH, supra note 59, at 71-72; T. PLUCKNETT, A CONCISE HISTORY
OF THE COMMON LAW 227-28 (5th ed. 1956).
63. As draftman of wills, marriage contracts, and conveyances, Mons. le Notaire has
survived in France as a much respected person, especially in the country villages. He is a
general non-forensic legal practitioner, his part in the legal scheme "being confined to vol­untary
as distinct from contentious jurisdiction." Brown, The office of Notary in France, 2
INT'L & COMP. L. Q. 60, at 64 (1953). Indeed, the French notary is close to the equivalent of
the English solicitor, except for the latter's participation in litigation. Thus one modern-day
commentator opined that "a solicitor would feel much at home in the etude of the French
notary, though he would be surprised, and perhaps disappointed, by the cordiality of the
morning post." Id. at 71.
Today in Louisiana as well the notary enjoys considerable powers. See Burke & Fox,
The Notaire in North America: A Short Study of the Adaptation of a Civil Law Institution, 50
TUL. L. REV. 318, at 328-32 (1975); Brosman, Louisiana-An Accidental Experiment in Fu­srim,
24 TUL. L. REV. 95, 98-99 (1949). The Louisiana notary has the power "to make
inventories, appraisements, and petitions; to receive wills, make protests, matrimonial con­tracts,
conveyances, and generally, all contracts and instruments of writing; to hold family
meetings and meetings of creditors; ... to affix the seals upon the effects of deceased per­sons
and to raise the same." LA. STAT. ANN.§ 35:2 (1964). When the Louisiana legislature
defined the practice of law, and prohibited all but licensed attorneys from engaging in it, it
therefore remembered to except acts performed by the notary which were "necessary or
incidental to the exercise of the powers and functions of (his] office." LA. STAT. ANN.
§ 37:212(B) (1974). A walk through modern-day New Orleans will reveal a number of signs
proclaiming the existence of "Law and Notarial Offices", a combination having an odd ring
in the ears of an American common lawyer. The Louisiana notary is simply "a different and
1983] COLONIAL LEGAL SYSTEM 407
make an appearance in eighteenth-century Louisiana. In New Orle­ans,
of course, there was much work for them, but there were also
provincial notaries operating in Biloxi, Mobile, Natchitoches, Pointe
Coupee, and Kaskaskia.64
Since De Montcharvaux acted as notary for the Lepine inven­tory,
it is reasonably clear that there was no provincial notary resi­dent
at the Arkansas at that time. This comes as no surprise since in
1746 there were at the Post only twelve habitant families, ten slaves,
and twenty men in the garrison, 65 hardly a sufficient European pop­ulation
to require or attract a law-trained scrivener. When it was
time to have their marriage contract made, the widow Chenalenne
and her future spouse executed it in New Orleans. No doubt there
was available there legal advice on which they might more comfort­ably
rely.66 Besides, there was at that time no resident priest at the
Post to perform the marriage.
v
On May 10, 1749, an event occurred that considerably reduced
the European population of Arkansas and also made it difficult to
attract settlers there for some time. On that day, the Post was at­tacked
by a group of about 150 Chicaksaw and Abeka warriors.
Their coming was undetected67 and thus they caught the small habi­tant
population altogether unaware. They burned the settlement,
killed six male settlers, and took eight women and children as
slaves.68 The census taken later that year shows, not surprisingly,
that the population had decreased since the previous census. Seven
more important official person than is the notary public in other jurisdictions of the United
States." Brosman, supra at 98.
64. See Baade, supra note 39, at 12.
65. Memoire sur /'Eta! de la Colonie de la Louisiane en 1746. Archives des Colonies,
Archives Nationales, Paris [hereinafter cited as ANC], Cl3A, 30:242-281, at 249, (Typescript
of original document available at Little Rock Public Library). As the average family size in
Arkansas in the middle of the eighteenth century was about four, this would put the number
of habitant whites at the Post at about forty-eight.
66. For an abstract of this marriage contract, see Records o.f the Superior Council o.f
Louisiana, 13 LA. HlsT. Q. 129 (1944).
67. However, the habitants may have had a warning that something was afoot, for on
May l, Francois Sarrazin had written from Arkansas that "two savages have killed a man
and a woman and burnt a man in the frame." Records efthe Superior Court o.f Louisiana, 20
LA. HlsT. Q. 505 (1937). This incident may have been connected with the attack nine days
later.
68. Vaudreuil to Rouille, September 22, 1749, calendared in THE VAUDREUIL PAPERS
59-60 (B. Barron ed., 1975). See also Faye, supra note 6, at 684 et seq. W. BAIRD, THE
QUAPAW INDIANS: A HISTORY OF THE DOWNSTREAM PEOPLE 34 (1980), gives the number
taken as slaves as thirteen.
408 UALR LAW JOURNAL [Vol. 6:391
men, eight women, eight boys, and eight girls remained, a total of
only thirty-one white habitants at the Poste des Akansa .69 Nor did
all this mark an end to serious trouble. When in June of 1751 First
Ensign Louis-Xavier-Martin de Lino de Chalmette, the comman­dant
of the Post, went uninvited to New Orleans to consult with the
governor, his entire garrison of six men took the opportunity to de­sert.
70 Things were obviously at a critical juncture.
When later in 17 51 Lieutenant Paul Augustin le Pelletier de la
Houssaye took command at Arkansas he found there a post recently
rebuilt by its habitants and _voyagij,tfrs and probably already relo­cated
to a spot ten or twelve miles upriver at the edge of the Grand
Prairie. (See Figure 2). It is clear that Governor Vaudreuil had
determined to hold the Arkansas even if the cost proved high, for he
assigned to De La Houssaye a large company of forty-five men.71
The lieutenant was also authorized to build a new fort; government
funds being lacking, he undertook the construction at his own ex­pense
in return for a five-year Indian trade monopoly.72
This new beginning could, in the nature of things, have given
only a slight lift to the prospects for sustained settlement in the Ar­kansas
country. Late in 1752 Governor Vaudreuil was informed
that the Osages had attempted an attack on Arkansas Post but had
failed. 73 While this indicates a stability of sorts for the l?ost, thanks
no doubt to the size of the new garrison, still the perceived danger
must have been so high as to discourage all but the most intrepid
from taking up residence at the Arkansas. Mentions of Arkansas in
the legal records tend to emphasize the dangerousness of the place.
For instance, a couple from Pointe Coupee, on the verge of leaving
for a hunting trip to the White River country, thought it best to deed
their property to a relative, with the stipulation that the deed was to
be void if they returned.74 It is not surprising, therefore, that even as
late as 1766, the last year of French dominion, only eight habitant
families, consisting in all of forty white persons, were resident at
Arkansas Post.75
69. Arkansas Post Census, 1749, Loudon Papers 200, Huntington Library, San Marino,
CA. There were also fourteen slaves resident at the post and sixteen voyageurs who had
returned after their winter's work. There were five hunters on the White River and four on
the St. Francis. Thirty-five hunters had failed to return from the Arkansas River.
70. Faye, supra note 6, at 708.
71. Id. at 211.
72. Id.
73. THE VAUDREUIL PAPERS, supra note 68, at 136.
74. Index to the Records of the Superior Council of Louisiana, 24 LA. HlsT. Q. 75 (1941).
75. See Din, Arkansas Post in the American Revolution, 40 ARK. HIST. Q. 3, at 4 (1981).
1983] COLONIAL LEGAL SYSTEM 409
All of these difficulties, and others, made for a place in which it
might be regarded as too polite to expect the presence of much
which corresponds to a legal system. In addition, political exigen­cies
sometimes interfered to such an extent that the application of
even-handed legal principle became inexpedient and thus entirely
impracticable. For instance, the continued existence of the Arkan­sas
settlement depended heavily on the loyalty of the Quapaws and
their wishes were therefore relevant to any important decision made
there. Their influence could extend even to the operation of the le­gal
system as the following incident demonstrates.
On 12 September, 1756, a meeting was held in the Government
House in New Orleans to hear an extraordinary request from
Guedetonguay, the Medal Chief of the Quapaws.76 His tribe had
captured four deserters from the Arkansas garrison and had re­turned
them; but the chief had come on behalf of his nation to ask
Governor Kerlerac to pardon the soldiers. One of those captured,
Jean Baptiste Bernard, in addition to having deserted, had killed his
corporal Jean Nicolet within the precincts of the fort.
The chief, obviously a great orator, said that he had come a
long distance to plead for the soldiers' lives despite the heat and the
demands of the harvest; and in his peroration he said that his head
hung low, hi~ eyes were fixed to the ground, and his heart wept for
these men. He knew, he explained, that if he had not come they
would have been executed, and this was intolerable to him because
he regarded them as his own children. He recited many friendly
acts of the Qua paws to prove the fidelity of his people to the French.
Among them was the release of six slaves (perhaps Chicaksaws cap­tured
by the Quapaws) "who would have been burned" otherwise,
and the recent capture of five Choctaws and two trespassing Eng­lishmen.
He himself, he noted, had recently lost one son and had
had another wounded in the war against the Chickasaws; and he .
counted this "a mark of affection for the French." In recompense he
asked for the pardon of the soldiers. The chief added that this was
the only such pardon his nation had thus far requested, and he
promised never to ask again. He did not doubt that Kerlerac, "the
great chief of the French father of the red men," charged to govern
them on behalf of "the great chief of all the French who lived in the
76. What follows is based on a memorandum entitled "Harangues faites dans
/'assemb/ee tenue a /'hotel du gouvernment cejourdhui, 20 Juin 1756," found in ANC, Cl3A,
39:177-180 (Transcript at Little Rock Public Library). The translations are mine.
410 UALR LAW JOURNAL [Vol. 6:391
great town on the other side of the great lake," would listen and do
the just thing.
Guedetonguay left his best argument for last. He maintained
vigorously that, under his law, any criminal who managed to reach
the refuge of the Cabanne de Valeur where the Quapaws practiced
their religious rites was regarded as having been absolved of his
crime. It was their custom everywhere that the chief of the Cabanne
de Valeur "would sooner lose his life than suffer the refugee to un­dergo
punishment for his crime." Evidently the soldiers were claim­ing
this right; and Ouyayonsas, the chief of the Cabanne de Valeur,
was there to back them up. This last argument was an excellent one
because it called upon the French to recognize an established Indian
usage not dissimilar from the European custom of sanctuary. And
the argument carried with it a threat of violent reaction if the cus­tom
were not allowed.
Kerlerac answered the chief that he was not unmindful of the
past services of the Quapaws, nor was he ungrateful for them.
"But," he said, "I cannot change the words declared by the great
chief of all the French against such crimes, and . . . it would be a
great abuse for the future" to pardon the soldiers. So, he continued,
"despite all the friendship that the French have for you and your
nation, these men deserve death."
The great chief stood for a long time with his head down and
finally answered ominously that he could not be responsible for the
revolutions which the chief of the privileged house might stir up-­revolutions
which he said ''would not fail to occur." The argument
continued and the governor offered to grant the chief "anything else
except these four pardons." But Guedetonguay stubbornly main­tained
that "the sole purpose of his journey was to obtain the par­don
of the four men." In the end the Governor extracted from the
Quapaw chiefs "publicly and formally their word . . . that they
would in the future deliver up all deserting soldiers as malefactors
or other guilty persons without any restriction or condition whatso­ever,
and that ... pardons would be accorded at the sole discretion
of the French."
No immediate decision was reached by the Governor, but later
that day some of his advisors, having reflected on what they had
heard, reckoned "that a refusal of the obstinate demands of these
chiefs . . . the faithful allies of the French would only involve the
colony in troublesome upheavals on the part of the said nations who
have otherwise up to the present served very faithfully." They con-
1983] COLONIAL LEGAL SYSTEM 411
eluded that "saving a better idea by Monsieur le Gouverneur it
would be dangerous, under all the present circumstances, not to sat­isfy
the Indians with the pardons which they demanded."
The governor took the advice but evidently did not write to
Berryet, the French Minister of the Marine, for some time to tell
him about it. From the comfort of Versailles it was easy for Berryet
to pick at Kerlerac's decision.77 In responding to Kerlerac, Berryet
first made the point that Bernard's case was different from that of
the other captured soldiers since he was accused of homicide in ad­dition
to desertion. Then, too, the minister had a lot of questions.
Could not the difference in Bernard's case have been urged on the
Arkansas chiefs to get them to relent in his case? Where was the
record of the legal proceedings which should have been conducted
relative to the killing? If this was a wilfull murder the pardon had
been conceded too easily. "It would be dangerous," the minister
warned, ''to leave such a subject in the colony, not only because he
would be an example of impunity but also because of new crimes
that he might commit." (The arguments of general and specific de­terrence
are not very recent inventions.) Finally, the governor was
sternly admonished "not to surrender easily to demands of this sort
on the part of the savages ... If on the one hand it is necessary,
considering all the present circumstances, to humor the savages, it is
also necessary to be careful of letting them set a tone that accords
neither with the king's authority nor the good of the colony."
Nevertheless, the minister talked to the king and he ratified the
governor's decision. Writs of pardon were therefore issued under
the king's name for each of the Arkansas soldiers. Because the
homicide committed by Bernard was not a military crime and was
cognizable therefore by the Superior Council of Louisiana, his par­don
was directed to the Council. Interestingly, though Berryet ad­mitted
knowing nothing of the circumstances surrounding the
killing, the pardon recited that a quarrel had arisen between Ber­nard
and Nicolet, that they had beaten each other, that Bernard
: "had had the misfortune to kill the said Nicolet," and that the death
"had occurred without premeditated murder."78 Thus Louis XV
pardoned Jean Baptiste Bernard for killing by mischance when
there was no evidence adduced as to the facts resulting in Nicolet's
77. What follows is based in Berryet's letter to Kerlerac and Bobe Descloseaux dated
July 14, 1769. ANC, B, 109:487-88 (Transcript at Little Rock Public Library). The transla­tion
is mine.
78. The pardon (brevet de grtJce) was enclosed in the letter and is ANC, B, 109:489
(Transcript at Little Rock Public Library). The translation is mine.
412 UALR LAW JOURNAL [Vol. 6:391
death. The decision was generated simply by a desire to accommo­date
an important ally. Faithful adherence to legal principle some­times
had to take a back seat to the more compelling demands of
politics.
VI
Father Louis Carette, the Jesuit missionary who came to the
Post of Arkansas in 1750, nevertheless attempted to bring some or­der
to the legal affairs of the place. As he noted in a procuration
(power of attorney) dated at Arkansas in 1753, he was "authorized
by the king to make in every post where there is not a Notary Royal
all contracts and acts .... "79 There is no evidence that he had any
formal legal training, but he was a Jesuit, and thus a learned man,
one of a handful of such who would make their residence in eight­eenth-
century Arkansas.
The 1753 procuration is itself of some interest, as it sheds light
on how litigants whose cases were technically beyond the jurisdic­tion
exercised by the Arkansas commandant (whatever that was)
might have had their cases heard if they wanted to resort to regular
methods of dispute settlement. As incredible as it seems, it is prob­able
that the only court of general jurisdiction in the entire colony
was the Superior Council of Louisiana. Now, in 1763 La Harpe said
that it was a two-week boat trip from the Arkansas to New Orleans,
and six to eight weeks back.80 Obviously, the procuration was an
important device for people in remote posts like Arkansas, for it
enabled them through their attorneys, in the language of the docu­ment
under discussion, "to act . . . as though they were personally
present."81 Convoys or individual vessels travelled down the Mis­sissippi
frequently enough to make this means of tending to legal
affairs more tolerable than it might otherwise have been. In this
case, the attorney chosen was Commandant de la Houssaye, and he
was deputed to act in a probate matter at Pointe Coupee for Etienne
de Vaugine de Nuysement and his wife Antoinette Pelagie Petit de
Divilliers. An interesting feature of procurations which increased
their utility and flexibility was that they were assignable. This fea­ture
came in handy in this instance since De La Houssaye, having
79. Index to the Records of the Superior Council of Louisiana, 22 LA. H!sT. Q. 255
(1939).
80. La Harpe to Chosseul, August 8, 1763, ANC, Ci3B, 1 (Typescript in Little Rock
Public Library).
81. Records, supra note 79, at id.
1983] COLONIAL LEGAL SYSTEM 413
been detained at the Arkansas due to illness, simply transferred the
power of attorney to a member of the Superior Council "to act in
my place as myself."82
Perhaps one of the reasons that Carette had acted as notary in
this instance was that the only other person in the little community
authorized so to act, the commandant, was a party to the instru­ment.
But in the French period priests were given general notarial
powers and could act even in the absence of circumstances disabling
the commandant. For instance, Carette acted as notary, and thus
probably draftsman, for a marriage contract in which the comman­dant
was not interested. This was the marriage contract of Francois
Sarrazin and Francoise Lepine, executed at Arkansas Post on Janu­ary
6, 1752.
Marriage contracts have no exact parallel in common-law prac­tice,
and it thus seems worthwhile, before discussing the particulars
of the Sarrazin-Lepine contract, to devote some time to their expla­nation
and description. In a recent seminal study, Professor Hans
Baade has outlined the provisions which one typically finds in mar­riage
contracts executed in accordance with eighteenth-century Pari­sian
notarial practice.83 The first and invariable undertaking by the
future spouses was a promise to celebrate their marriage in facie ec­c!
esiae. The parties would then choose the regime which would
govern their property during the marriage. Next would come a dec­laration
that the ante-nuptial debts of the parties were to remain
their separate obligations; this was followed by a disclosure of the
parties' assets, a requirement for the validity of the previous provi­sion.
The dowry brought to the marriage by the wife was next re­cited;
and delineating preciput, the right of the spouse to specific
property in the event of dissolution of the community, frequently
followed. Finally came the donation clause, usually a reciprocal
grant of all or part of the predeceasing spouse's estate. In Louisiana,
this donation, in order to be valid, had to be registered with the
Superior Council in New Orleans.
An inspection of the Sarrazin-Lepine marriage contract reveals
that it very clearly drew on these French notarial precedents, and it
reflects, moreover, an awareness of the practical requirements of the
Louisiana registration provisions. It contained a promise to cele­brate
the marriage in regular fashion, the creation of a community
property regime, a clause stating the amount of the wife's dowry, a
82. Id.
83. What follows is taken from Baade, supra note 39, at 15-18.
414 UALR LAW JOURNAL [Vol. 6:391
mutual donation to the survivor of all property owned at death, and
an undertaking to have the contract registered in New Orleans.84
While there was no clause dealing with ante-nuptial debts and no
mention of preciput, it is quite obvious that the good Jesuit knew
more than a little about French notarial practice, and may well have
had at his disposal a form book on which he could draw. He was,
for all practical purposes, for a time the "lawyer" of the post as well
as its cure.
Before we leave this interesting document there is an aspect of
it which bears detailed attention. The property regime chosen by
the parties included in the community "all property, movable and
immovable"85-as common lawyers would say, all property, both
personal and real. In this respect the contract departs from the Cus­tom
of Paris which included in the community all movables but
only certain immovables (conquets) acquired after marriage. 86 Par­ties
were allowed in Louisiana to contract almost any property ar­rangement
they wanted, 87 and Sarrazin and Lepine had elected a
somewhat unusual variety of community. Curiously, however, the
contract reckoned that this regime was "in accordance with the cus­tom
received in the colony of Louisiana."
A few months after the execution of this contract Commandant
de la Houssaye wrote to the governor to say that Monsieur Etienne
V augine, a French officer, was of a mind to marry Madame de
Gouyon, the commandant's sister-in-law, and he sent along "the
proposed conditions for the contract of marriage."88 This was a
draft of the contract, as De La Houssaye asked the governor to pass
"/'exemplair du contra!" along to the New Orleans notary
Chantaloux if the governor decided to give his permission for the
marriage. Chantaloux was "to make it as it should be."89 Three
weeks later the governor wrote to say that the contract would be sent
back soon and that Chantaloux had left it intact except for one rea­sonably
minor alteration.90
In 1758 Father Carette, dismayed by the irreligious inclination
of his flock, left the Arkansas and no replacement was sent. In 17 64,
84. Records of the Superior Council of Louisiana, 25 LA. HlsT. Q. 856-57 (1942).
85. Id. at 856.
86. Baade, supra note 39, at 15.
87. Id.
88. La Houssaye to Vaudreuil, Dec. l, 1752, LO 410, Huntington Library, San Marino,
CA.
89. Id.
90. THE v AUDREUIL PAPERS, supra note 68, at 152.
1983] COLONIAL LEGAL SYSTEM 415
Captain Pierre Marie Cabaret Detrepi, commandant at the Arkan­sas,
after Madame Sarrazin had found herself widowed, passed a
second marriage contract for her which was extremely unsophistica­ted
and rudimentary.91 It contained only a promise to marry regu­larly
and a mutual donation. Perhaps the good widow had by this
time tired of long-winded formalities. Just as likely, the Post was
feeling the absence of Carette's drafting skills.
VII
As tiny, remote, and inconsequential as the Arkansas settle­ment
was, then, it is nevertheless clear that at least some of its peo­ple
were part of the time adherents to French legal culture. Of
course almost everyone who lived at the Post during the period of
French domination was either a native of France or French Cana­dian;
and by the end of the French period a substantial number of
native Louisianans were there. It is most interesting to find the sur­vival
of civilian legal form in so remote an outpost of empire. Obvi­ously,
not all of Arkansas's residents lapsed into a kind of legal
barbarism.
There were, however, circumstances at work which would
make it impossible for some time to establish a community which
could be expected to value the observance of legal niceties very
highly. As we have already seen, the Post could not have been very
attractive to the more civilized settler owing to its dangerous loca­tion.
Arkansas Post, moreover, over the years experienced an ex­treme
physical instability since it was necessary to relocate it several
times due partly to flooding. (See Figure 2). The Arkansas River
was in the eighteenth century "a turbulent, silt-laden stream, subject
to frequent floods which were disastrous along its lower course."92
This proved to be a considerable disincentive to settlement. Add to
that the enormous expanse occupied by the alluvial plain of the
Mississippi and the difficulty becomes plain enough.
Almost any site within thirty miles of the mouth of the Arkan­sas
carried with it a considerable risk of floods. Law's colony, on
the Arkansas twenty-seven miles or so from its mouth, was said in
1721 to be "in a fertile sector but subject to floods."93 The success of
the attack by the Chickasaws in 1749, when the Post was at the same
91. Records of the Superior Council of Louisiana, Feb. 11, 1764, Louisiana History
Center, Louisiana State Museum, New Orleans.
92. P. HOI.DER, supra note 15, at 152.
93. 4 M. GIRAUD, supra note 17, at 273 (1974).
416 UALR LAW JOURNAL [Vol. 6:391
location, was made possible by the absence from the neighborhood
of the Quapaws: Because of recent floods they had abandoned their
old fields for a more promising place upstream.94 This place, called
Ecores Rouges (Red Bluffs) by the French, was about thirty-six
miles from the mouth of the Arkansas and was at the present loca­tion
of the Arkansas Post Memorial.95 After the attack, the Post was
moved to join the Indians at Ecores Rouges so as to provide for
mutual protection.96
The new spot was free from floods but proved unsatisfactory
from a strategic standpoint because of its distance from the Missis­sippi.
The location delayed convoys and Governor Vaudreuil ex­pressed
the view that "a post on the Mississippi would be more
practical."97 Therefore in 1756 the Post was moved back downriver
to about ten miles above the mouth. But the inevitable soon oc­curred.
In 1758 heavy flooding, graphically described in a letter of
Etienne Maurafet Layssard the garde magasin (storekeeper) of the
Post, caused heavy damage, almost undoing the work of builders
and architects who had been at work for the better part of a year.
The houses were saved by virtue of being raised on stakes against
such a day as this; but the habitants' fields, everything but Lays­sard's
garden for which he had providently provided a levee, were
entirely inundated.98
It was in fact a small enough loss. From the beginning, and
understandably, the attempt to make a stable agricultural commu­nity
of the Arkansas had failed miserably. There is no doubt that
the European population of Arkansas during the French period con­sisted
almost entirely of hunters and Indian traders. In 1726 the
reporter of the Louisiana census remarked of the Arkansas that "all
the habitants were poor and lived only from the hunting of the Indi­ans."
99 A 1746 report said of the twelve Arkansas habitant families
94. Faye, supra note 6, at 717-19.
95. See figure 2.
96. For details, see Appendix II to my forthcoming book, UNEQUAL LAWS UNTO A SAV­AGE
RACE; EUROPEAN LEGAL TRADlTIONS IN ARKANSAS, 1686-1836.
97. THE VAUDREUIL PAPERS, supra note 68, at 118.
98. Faye, supra note 6, at 718-19. A detailed description of the repairs made in the
summer of 1758, evidently necessitated by these floods, is in ANC, CBA, 40:349-50 (Type­script
in Little Rock Public Library). In addition to making repairs, the builders constructed
a house 26 feet long and 19 wide just outside the fort for the Indians who came there on
business. It was of poteaux en terre construction, was covered with shingles, and was en­closed
with stakes. The report describing the renovation and construction work of 1758 is
signed by Denis Nicol~s Foucault, chief engineer of the Province of Louisiana.
99. ANC, GI, 464 (Transcript at Little Rock Public Library).
1983] COLONIAL LEGAL SYSTEM
• DeWitt
ARKANSAS
COUNTY
• Dumas
I I I
0
1. 1686-1699;
1721-1749
N
1
DESHA
COUNTY
T
I I
4
I
8 mi
Figure 2 Locations of
Arkansas Post, 1686-1983
2. 1749-1756;
1779-1983
3. 1756-1779
JB
Based on a map drawn by John Baldwin which appeared in
Arnold, The Relocation of Arkansas Post to Ecores Rouges in
1779, 42 ARK. HIST. Q. 317 (1983). Used with permission of the
Arkansas Historical Association.
417
418 UALR LAW JOURNAL [Vol. 6:391
that "their principal occupation is hunting, curing meat, and com­merce
in tallow and bear oil." As for cultivating the soil, the same
source reported that the habitants grew "some tobacco for their own
use and for that of the savages and voyageurs." 100 In 1765 Captain
Phillip Pittman, an Englishman, said that there were eight families
living outside the fort who had cleared the land about nine hundred
yards in depth. But, according to him "on account of the sandiness
of the soil, and the lowness of the situation, which makes it subject
to be overflowed," their harvest was not enough even to supply them
with their necessary provisions. Pittman noted that "when the Mis­sissippi
is at its utmost height the Lands are overflow' d upwards of
five feet; for this reason all the buildings are rais'd six feet from the
ground." Thus the residents of the Arkansas, he said, subsisted
mainly by hunting and every season sent to New Orleans "great
quantities of bear's oil, tallow, salted buffalo meat, and a few
skins." 101
Both Layssard102 and Father Watrin103 hint that the discour­agement
produced by the frequent flooding contributed to Father
Carette's decision to leave. However that may be, it must be clear
that during the period of French dominion the Post did not provide
fertile soil for either crops or religion. Would regular bourgeois le­gal
procedures have generally been afforded a more cordial accept­ance?
Even absent direct evidence, this would in the abstract seem
most unlikely. Unsafe, unstable, and uncomfortable, the Arkansas
Post of Louisiana during the period of French dominion must surely
also have been largely unmindful of bourgeois legal values.
It is true, as we have seen, that some of the Post's residents tried
to maintain a connection between their remote outpost and Euro­pean
legal culture. But the few legal records that chance has al­lowed
to come down to us from the French period are remarkable
not only for their small number but also for the social and economic
characteristics they reveal of the people who figured in them. They
were an elite, related by marriage and blood, struggling under the
difficult circumstances of their situation to participate in regular le-
100. Memoire, supra note 65 (Transcript at Little Rock Public Library).
101. P. PITTMAN, supra note 53, at xliv, 40-41.
10+. See ANC, Cl3A, 40:357 (Transcript in Little Rock Public Library). Layssard there
remarks that the inhabitants at Arkansas were too poor to build a levee, and that "the Father
would rather leave than go to such an expense. He is very poor."
103. See J. DELANGLEZ, THE FRENCH JESUITS IN LOWER LOUISIANA 444, where Watrin
is quoted as saying that, despite there being little hope for conversion of the Quapaws, Fa­ther
Carette "nevertheless followed both the French and the savages in their various changes
of place, occasioned by the overflowing of the Mississippi near which the post is situated."
1983] COLONIAL LEGAL SYSTEM 419
gal processes. The probate proceeding of 1743 was instituted by one
of the most well-to-do residents of Arkansas in the person of Anne
Catherine Chenalenne, widow of Jean Francois Lepine. The com­munity
property inventoried included four slaves. 104 Her future
husband Charles Lincto became the most substantial civilian resi­dent
of the Post. The 17 49 census, if one excludes from it for the
moment the commandant and his household, reveals that Lincto's
household accounted for eight of the twenty-nine white habitants
and seven of the eleven slaves at the Arkansas. 105 Etienne de Vau­gine
de Nuysement who executed the procuration of 1753 was a
member of one of the most distinguished French families of Louisi­ana;
106 and he granted the power to Commandant de la Houssaye
who would soon become a Major of New Orleans and a Knight of
the Royal and Military Order of St. Louis. 107 Vaugine and De la
Houssaye married sisters. The marriage contract executed at the
Arkansas in 1752 was entered into by the Post's garde magasin and
Francoise Lepine, a daughter of Anne Catherine Chenalenne the
petitioner in the probate proceeding of 1743; and the bride's dowry
had resulted from the dissolution of the community which had been
the aim of that proceeding. Finally, Francoise Lepine's second mar­riage
contract, passed by Detrepi in 1764, was prelude to her mar­riage
to Jean Baptiste Tisserant de Montcharvaux, officer and
interpreter at the Post and son of the commandant who executed the
1743 inventory. We are dealing with a propertied and intercon­nected
gentry here, a tiny portion of what was anyway a very small
population.
How the other, the major part of the Arkansas populace regu­lated
their lives during the French period will, in the nature of
things, be difficult to document. But there is some evidence on this
point and it indicates that there was a good deal of lawlessness on
the Arkansas. According to Athanase de Mezieres, the Lieutenant
Governor at Natchitoches, the Arkansas River above the Post was
inhabited largely by outlaws. "Most of those who live there," he
claimed, "have either deserted from the troops and ships of the most
Christian King and have committed robberies, rape, or homicide,
104. For a translation of this inventory, see Core, supra note 54, at 22.
105. Resancement General des Habitants, Voyageurs, Femmes. En.fans, Esclaves, Clzevaus,
Beufs, Vaclzes, Coclzons du Foste des Akansas, 1749. Lo. 200, Huntington Library, San Ma­rino,
CA.
106. On the Arkansas Vaugines, see Core, T!ze Vaugine Arkansas Connection, 20 GRAND
PRAIRIE HISTORICAL SOCIETY BULLETIN 6 (1978).
107. Faye, supra note 6, at 709.
420 UALR LAW JOURNAL [Vol. 6:391
that river being the asylum of the most wicked persons, without
doubt, in all the Indies." 108 On another occasion, De Mezieres sin­gled
out as a particularly heinous offender an Arkansas denizen
nicknamed Brindamur, a man "of gigantic frame and extraordinary
strength." Brindamur, De Mezieres complained, "has made himself
a petty king over those brigands and highwaymen, who, with con­tempt
for law and subordination with equal insult to Christians, and
the shame of the very heathen, up to now have maintained them­selves
on that river." 109 He had been resident on the Arkansas for a
long time, as his name appears in the census of 1749. Interestingly,
it is placed at the very head of a considerable list of "the voyageurs
who have remained up the rivers despite the orders given them." 110
All persons hunting on the rivers were supposed to return every year
as passports were not issued for longer periods. But there were large
numbers of hunters who lived for twenty years or more in their
camps without ever reporting to the Post. They constituted a large
proportion, indeed sometimes a majority, of the European popula­tion
in Arkansas during the French period. The 17 49 census, for
instance, lists a habitant population of only thirty-one, including the
commandant and his wife. But there were forty hunters on the Ar­kansas
River whose passports had expired, and nine on the White
and St. Francis Rivers. Sixteen hunters were said to be at the Post
being outfitted to return to the hunt.
Brindamur, the bandit King, was murdered by one of his men
after the end of the French period, "though tardily" De Mezieres
reckoned, and "by divine justice."111 In the Spanish period an effort
was made to rid the river of these malefactors.
VII
Since no records of litigation initiated at the Arkansas during
the French period have survived, if indeed any were ever kept, very
little can be said directly on how lawsuits were conducted there.
However, in 1747 Francois Jahan initiated a suit in the Superior
Council in New Orleans against one Clermont, a resident of Arkan­sas
Post, claiming damages for the conversion of a cask of rum at
Arkansas. 112 The Superior Council, as we have shown, had jurisdic-
108. 1 ATHANASE DE MEZIERES AND THE LOUISIANA-TEXAS FRONTIER, 1768-1780 166
(H. Bolton ed., 1914).
109. Id. at 168-69.
110. Resancement, supra note 105.
111. t\. BOLTON, supra note 108, at 167.
112. Index lo the Records of the Superior Court of Louisiana, 17 LA. HIST. Q. 569 (1934).
1983] COLONIAL LEGAL SYSTEM 421
tion throughout Louisiana, and this case reveals how it was exer­cised
against a defendant in the hinterlands. The summons was
served on the Attorney General of Louisiana; thus, as Henry Dart
pointed out, "it would seem . . . that a resident of the Post of Ar­kansas
could be sued in New Orleans by serving the citation on the
Procureur [Attorney] General."113 How the case would have, in the
ordinary instance, proceeded from there is difficult to say. Probably
the Arkansas commandant would have been asked to act as a
master to gather facts and to report to the Superior Council. But it
seems that the commandant had already ruled independently on the
matter. Commandant de Monbharvaux's statement on this case,
which is entered in the record a'few days after the suit was initiated,
indicates that he had held a hearing on the matter at the Arkansas,
had taken testimony as to the rum, and had "sentenced Clermont to
pay for it."114 Apparently he had kept no record of the proceeding,
as none was offered: The good lieutenant bore his own record. It is
interesting to note, however, that this case was evidently not brought
to enforce the commandant's judgment but was an independent
action.
How did the justice provided by the Post commandant during
the French period measure up? In the absence of litigation records,
this is the hardest kind of question to answer. We know, however,
that whatever jurisdiction was exerciseable by the commandant, he
acted alone, without official advisors and without, of course, a jury.
To say that rule is autocratic is not to say<!ili~~~sf1Jyi that it is bad.
But the possibilities for arbitrary action are large in such circum­stances
and much of course depends on the personality and charac­ter
of the autocrat.
Parkman claimed that the Illinois commandant exercised his
considerable power "in a patriarchal spirit and . . . usually com­manded
the respect and confidence of the people." 115 But for the
most part the eighteenth-century French commandants in Louisiana
had a reputation for arbitrariness. Captain Phillip Pittman had a
low opinion of them, and accused the Illinois commandants of ex­tortion
in matters of trade. 116 He also once remarked generally on
"the tyranny, which has been always exerted by officers of that na­tion
commanding outposts."117 Another commentator has written
113. Id.
114. Id. at 571.
115. Quoted in Dart, supra note 31, at 279.
116. See P. PITTMAN, supra note 53, at 53.
117. Id. at 36.
422 UALR LAW JOURNAL [Vol. 6:391
of the French post commandants as "small tyrants who were op­pressing
all those living under their jurisdiction."118 At least one
eighteenth-century Arkansan would have agreed with these assess­ments.
That was Etienne Layssard, the storekeeper at the Post pre­viously
mentioned; he was, except for Father Carette and the
various commandants already alluded to, the most visible member
of the Arkansas settlement in the 1750s. He wrote long and ram­bling
letters about conditions at the Post and complained constantly
of his poverty and of his difficulties with his commandant, Captain
de Gamon de la Rochette. In November of 1758 he wrote his supe­rior
in New Orleans that De Gamon claimed to be "sole master of
all the commerce, of the garrison, as well as the voyageurs, and is
paid preferentially by virtue of his office, saying that if anything is
left over the others can have it." He went on to say that "not know­ing
any law which establishes such authority, . . . I believe that
when the commandant sells to a private person he is a merchant like
me and ought to collect only his proportionate share." 119 On an­other
occasion, according to Layssard, De Gamon had said that "no
one had a right to go to the [Quapaw] village to trade but him ...
and that the trade belonged to him." Layssard complained bitterly
that this deprived him of a living and he described his desperate
circumstances: "My wife and I, four children, five slaves, a dog, a
cat, and chickens live in a small house 25 feet long and 10 feet wide,
with one little chimney to warm us all .... " 120
While there is reason to think that Layssard was cranky and
litigious (he once wrote to New Orleans demanding the prosecution
of the Post surgeon for an unnamed offense), 121 there is no good
reason to question his claims about the commandant's behavior.
These incidents are good examples of the possibilities for the abuse
of power when civilian and military authority are combined. When
Layssard wrote his letters in 1758 Arkansas Post was virtually a gar­rison
state. There were only six houses and thus a total resident
white civilian population that could not have much exceeded thirty­five.
122 On the other hand, there was a permanent garrison of fifty
soldiers which in 1756, because of the difficulty with the Quapaws
discussed above, was temporarily reinforced by an additional force
118. J. DELANGLEZ, supra note 103, at 445.
119. ANC, Cl3A 40:328-29 (Calendar at Arkansas History Commission, Little Rock).
120. ANC, Cl3A 40:306-12 (Calendar at Arkansas History Commission, Little Rock).
The translation is mine and is made from a typescript in the Little Rock Public Library.
121. ANC, Cl3A 40:323-26 (Calendar at Arkansas History Commission, Little Rock).
122. Faye, supra note 6, at 716.
1983] COLONIAL LEGAL SYSTEM 423
of sixty men. 123 As we noted, in August of 1758 Father Carette,
discouraged by the irredeemably bad character of the Post popula­tion,
gave up his post. 124 The commandant would thereafter have
no one with whom to share his authority and no near equal to chal­lenge
it.
Of the ten military officers who exercised judicial authority in
Arkansas during French rule we know precious little of relevance. 125
Only De la Houssaye, the commandant from 1751to1753, has come
down to us outfitted with any kind of clear indication of character,
and he does not appear to have possessed much of a judicial temper­ament.
Governor de Vaudreuil said that he had found it necessary
to relieve De la Houssaye of his position at the Alibamous Post be­cause
of "his passion for drink ... after giving him several charita­ble
warnings on the subject, but without effect." The governor then
delivered this ominous coup de grace: "In addition, his character
could not be worse or more dangerous." 126
123. Id. at 715.
124. J. DELANGLEZ, supra note 103, at 445.
125. For a list of these and the dates during which they commanded at the Arkansas, see
Appendix III of ARNOLD, UNEQUAL LAWS UNTO A SAVAGE RACE: EUROPEAN LEGAL TRA­DITIONS
IN ARKANSAS, 1686-1836, which will be published later this year.
126. Faye, supra note 6, at 709.

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THE ARKANSAS COLONIAL LEGAL SYSTEM, 1686-1766
Morris S. Arnold*
Except for the silence of its final letter, there is nowadays noth­ing
very French about Arkansas. Yet before the American takeover
in 1804 the great majority of the European inhabitants of the area
presently occupied by the state were of French origin. There is
s9me visible proof of this in the names, many now mangled beyond
e:asy recognition, which eighteenth-century voyageurs and coureurs
de bois gave to a good many Arkansas places and streams; 1 and
there are, as well, a number of Arkansas townships which bear the
names of their early French habitants .2
While these faint traces of a remote European past survive, ab­solutely
nothing remains of the laws and customs which the ancient
residents of Arkansas observed. This is no accident. It was a favor­ite
object of Jefferson to introduce the common law of England into
the vast Louisiana Territory as quickly as he could. In the lower
territory he waited too late. New Orleans had had a large French
population and a somewhat professionalized legal system for some
time, and the civilian opposition, given time to congeal, proved to
* Ben J. Altheimer Distinguished Professor of Law, University of Arkansas at Little
Rock. B.S.E.E. 1965, LL.B. 1968, University of Arkansas; LL.M. 1969, S.J.D. 1971, Harvard
Law School.
This article is the first chapter of Professor Arnold's book, UNEQUAL LAWS UNTO A
SAVAGE RACE: EUROPEAN LEGAL TRADITIONS IN ARKANSAS, 1686-1836, which will be
published later this year.
l. See generally Branner, Some Old French Place Names in the State of Arkansas, 19
ARK. HIST. Q. 191 (1960). The etymology of some of these names is difficult and interesting.
Who would guess very quickly, for instance, that Smackover in Union County is Chemin
Couvert (covered road) in disguise? Id. at 206. Tchemanihaut Creek (pronounced
'Shamanahaw") in Ashley County is a good deal easier: Chemin a haut (high road) must
have been its original name. Its initial letter, one local historian has plausibly suggested, is
probably attributable to "a misguided attempt to derive the name from the Indian lan­guage."
Y. ETHERIDGE, HISTORY OF ASHLEY COUNTY, ARKANSAS 17, 18 (1959). Other
names should on sight be instantly intelligible to a modern Parisian, though their current
pronunciation might cause him consternation: Examples are the Terre Rouge (red earth)
and Terre Noire (black earth) Creeks in Clark County, the L 'Angui!le (eel) River in north­east
Arkansas, and La Grue (crane) township in Arkansas county.
2. Vaugine and Bogy Townships in Jefferson County, Darysaw (Desruisseaux) Town­ship
in Grant County, and Fourche La Fave (Lefevre) Township in Perry County are good
examples.
391
392 UALR LAW JOURNAL [Vol. 6:391
have sufficient muscle to win a partial victory.3 As a result, as to
substantive civil matters the state of Louisiana is today a thoroughly
civilian jurisdiction. In the upper territory, however, by a piecemeal
process beginning in 1804, the English common law was insinuated
into the legal system, until, in 1816, it was at last adopted virtually
wholesale by the General Assembly of the Missouri Territory.4 The
purpose of this article is to explain why civilian legal institutions
proved so weak in Upper Louisiana and especially in Arkansas. It
turns out that the smallness and character of the European popula­tion
in Arkansas was the main cause for the vulnerability of Euro­pean
legal norms there. The reception of the common law in
Arkansas was simply one element in a more general exchange of
cultures which occurred following the Louisiana Purchase.
I
At ten o'clock on the morning of March 12, 1682, Robert Cava­lier,
sieur de la Salle, having been commissioned four years earlier
by Louis XIV of France to explore and take possession of the Mis­sissippi
and its tributaries, drew near the Quapaw Village of Kappa.
The village was located on the right bank of the Mississippi River
about twenty miles north of the mouth of the Arkansas. From the
war chants emanating from the Indian town, La Salle judged that he
was in for a hostile reception; so he hastily constructed a "fort" on
an island opposite the village and awaited developments. Soon,
however, the Quapaw chief sent the calumet of peace, and La Salle
and his men went to Kappa where they were received with every
possible demonstration of affection both public and private. Asked
by the Quapaws for help against their enemies, La Salle promised
that they could thenceforth look for protection to the greatest prince
of the world, in whose behalf he had come to them and to all the
other nations who lived along and around the river. In return, La
Salle said, the Quapaws had to consent expressly to the erection in
their village of a column on which His Majesty's arms were to be
painted, symbolizing their recognition that he was the master of
their lands.
The Indians agreed and Henry de Tonti, La Salle's lieutenant
3. See generally G. DARGO, JEFFERSON'S LOUISIANA: POLITICS AND THE CLASH OF
LEGAL TRADITIONS (1975).
4. 1 LAWS OF A PUBLIC AND GENERAL NATURE, OF THE DISTRICT OF LOUISIANA, OF
THE TERRITORY OF LOUISIANA, OF THE TERRITORY OF MISSOURI, AND OF THE STATE OF
MISSOURI, UP TO THE YEAR 1824, ch. 154 (1842).
1983) COLONIAL LEGAL SYSTEM 393
and commandant of one of the two brigades in the company, imme­diately
caused the column to be fashioned. On it was painted a
cross and the arms of France, and it bore these words:
Louis the Great, King of France and of Navarre, rules. 13th of
March, 1682.
Tonti then conducted the column with all the French men-at-arms
to the plaza of the village, and, La Salle taking up a position at the
head of his brigade and Tonti at the head of his, the Reverend Fa­ther
Zeno be Membre sang the hymn 0 crux, ave, spes unica. The
company then went three times around the plaza, each time singing
the psalm Exaudiat te Dominus and shouting vive le roy to the dis­charge
of their muskets. They then planted the column while re­peating
the cries of vive le roy, and La Salle, standing near the
column and holding the king's commission in his hand, spoke in a
loud voice the following words in French:
On behalf of the very high, very invincible, and victorious prince
Louis the Great, by the grace of God, King of France and of
Navarre, the fourteenth of this name, today, the 13th of March,
1682, with the consent of the nation of the Arkansas assembled at
the village of Kappa and present at this place, in the name of the
king and his allies, I, by virtue of the commission of His Majesty
of which I am bearer and which I hold presently in my hand ... ,
have taken possession in the name of His ffi.ajesty, his heirs, and
the successors to his crown, of the country of Louisiana and of all
the nations, mines, minerals, ports, harbors, seas, straits, and
roadsteads, and of everything contained within the same . . . .
After more musket-firing and the giving of presents the Indians cele­brated
their new alliance throughout the night, pressing their hands
to the column and then rubbing their bodies in testimony to the joy
which they felt in having made so advantageous a connection. Thus
did France gain sovereignty over and ownership of Arkansas.
The reason that we know all these details and more about La
Salle's activities in Arkansas is that he had requested, and received,
from Jacques de la Metairie, the notary who was in his company, a
lengthy proces-verbal describing the events at Kappa and officially
attesting their occurrence.5 This was Arkansas's first exposure to
civilian legal processes. It would be almost 150 years before the
influence of the civil law ceased to make itself felt there.
5. 2 P. MARGRY, DECOUVERTES ET ETABLISSEMENT DES FRAN